Marginal note:Defence

59. The defendant, in any action for infringement of a patent may plead as matter of defence any fact or default which by this Act or by law renders the patent void, and the court shall take cognizance of that pleading and of the relevant facts and decide accordingly.

R.S., c. P-4, s. 61.

IMPEACHMENT

Marginal note:Impeachment of patents or claims

60. (1) A patent or any claim in a patent may be declared invalid or void by the Federal Court at the instance of the Attorney General of Canada or at the instance of any interested person.

Marginal note:Declaration as to infringement

(2) Where any person has reasonable cause to believe that any process used or proposed to be used or any article made, used or sold or proposed to be made, used or sold by him might be alleged by any patentee to constitute an infringement of an exclusive property or privilege granted thereby, he may bring an action in the Federal Court against the patentee for a declaration that the process or article does not or would not constitute an infringement of the exclusive property or privilege.

Marginal note:Security for costs

(3) With the exception of the Attorney General of Canada or the attorney general of a province, the plaintiff in any action under this section shall, before proceeding therein, give security for the costs of the patentee in such sum as the Federal Court may direct, but a defendant in any action for the infringement of a patent is entitled to obtain a declaration under this section without being required to furnish any security.

JUDGMENTS

Marginal note:Judgment voiding patent

62. A certificate of a judgment voiding in whole or in part any patent shall, at the request of any person filing it to make it a record in the Patent Office, be registered in the Patent Office, and the patent, or such part as is voided, shall thereupon be and be held to have been void and of no effect, unless the judgment is reversed on appeal as provided in section 63.

R.S., 1985, c. P-4, s. 62;

1993, c. 15, s. 49.

Marginal note:Appeal

63. Every judgment voiding in whole or in part or refusing to void in whole or in part any patent is subject to appeal to any court having appellate jurisdiction in other cases decided by the court by which the judgment was rendered.

R.S., c. P-4, s. 65.

CONDITIONS

Marginal note:Abuse of rights under patents

65. (1) The Attorney General of Canada or any person interested may, at any time after the expiration of three years from the date of the grant of a patent, apply to the Commissioner alleging in the case of that patent that there has been an abuse of the exclusive rights thereunder and asking for relief under this Act.

Marginal note:What amounts to abuse

(2) The exclusive rights under a patent shall be deemed to have been abused in any of the following circumstances:

(a) and (b) [Repealed, 1993, c. 44, s. 196]

(c) if the demand for the patented article in Canada is not being met to an adequate extent and on reasonable terms;

(d) if, by reason of the refusal of the patentee to grant a licence or licences on reasonable terms, the trade or industry of Canada or the trade of any person or class of persons trading in Canada, or the establishment of any new trade or industry in Canada, is prejudiced, and it is in the public interest that a licence or licences should be granted;

(e) if any trade or industry in Canada, or any person or class of persons engaged therein, is unfairly prejudiced by the conditions attached by the patentee, whether before or after the passing of this Act, to the purchase, hire, licence or use of the patented article or to the using or working of the patented process; or

(f) if it is shown that the existence of the patent, being a patent for an invention relating to a process involving the use of materials not protected by the patent or for an invention relating to a substance produced by such a process, has been utilized by the patentee so as unfairly to prejudice in Canada the manufacture, use or sale of any materials.

(3) and (4) [Repealed, 1993, c. 44, s. 196]

Definition of “patented article”

(5) For the purposes of this section, the expression “patented article” includes articles made by a patented process.